Complainant

Respondent

Anonymised Parties

Hotel Manager

Hotel Owner

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00015078-001

17/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00015078-002

17/10/2017

The Complainant worked with the Respondent Company and it’s predecessor since 2014. The Respondent terminated the Complainant’s employment after a routine examination of the clocking in system being operated by its Employees. This routine examination tended to show some irregularities in the way the Complainant operated same. Both parties provided me with written submission and supporting documentation.

The Complainant claimed that the procedures being operated by the Respondent were manifestly unfair and that the Company was simply exploiting her long standing arrangement as an excuse to terminate her Employment.

The Respondent stated that the Complainant’s conduct was such that there was reasonable justification for the termination of the employment in circumstances where the dismissal results wholly or mainly from the conduct of the employee per Section 6(4).

I have carefully considered the evidence adduced. The Complainant worked as a catering/food Manager with the Respondent company which had taken over the hotel wherein she had worked since late 2016 early 2017.

It is common case between the parties that the Complainant worked very closely with GF the former owner of the hotel and that he had on occasion gone out of his way to ensure that her ability and enthusiasm to be at work was made easier. To this end for example he had given her use of a car parking spot in the city centre which expense either he or the company bore. Also, it is common case that the Complainant had unfettered access to the GF bypassing middle management more senior to her including the operations manager with whom she had a strained relationship especially as the Operations knew that the Complainant was on a good fixed salary whereas most of the employees were on an hourly rate with shift allocation. This was unusual and again seen as evidence of the trust and respect between the Complainant and GF.

For reasons unknown the new employer and GF had a big falling out during the transfer of the business to the new entity. This falling out had nothing to do with the Complainant who continued to work with the Respondent company.

In July of 2017 the Complainant was advised that the CEO wanted to meet with her for a “chat”. In fact, the meeting to which the Complainant had been invited resulted in her immediate suspension from the workplace.

There is no doubt that the Complainant’s employment record was excellent. There was no issue with her performance, enthusiasm or willingness to roll up her sleeves and get on with the job. The Complainant as she was on a fixed salary did not get overtime but she enjoyed her job and very often and saw her role as a Manager as meaning that she would have to demonstrate flexibility and be prepared to work longer hours.

The meeting with the CEO and the HR Manager was very shocking to the Complainant who was told that the issue of clocking irregularities had come to light. It is worth noting that the Complainant immediately recognised what was at issue and explained that she had for the past three years operated a standing arrangement whereby if she got delayed coming into the workplace by reason of a child minding issue or because she had to purchase goods for the hotel then members of staff would clock her in as if she was there.

The Complainant gave evidence through her representative that the Complainant’s initial start time had been 8am and that in January 2015 her times were changed initially to 7am and then to 7.30 as she was needed in work earlier. The Complainant says that she always had difficulty making the 7.30 start as she had a small child at home. She says that her Employer GF knew this was a problem and he sanctioned her rather unorthodox practise of having others ring in her clock time (which started out by reading a palm print) if she was running late at all. The Complainant said that this might happen if the Complainant was running five or ten minutes late

I categorically asked and was directly told by the HR Manager that the Complainant always did her Minimum shift hours so that even if she started a little late she would stay on a little longer and very often a lot longer than was Contractually her obligation.

The Complainant’s evidence has consistently been that GF knew an was aware that the Complainant’s clock keeping times were not exemplary but she was never corrected on this practise and the Complainant believes that this was primarily because she was seen as such a valuable asset in the workplace.

With the change of ownership, and against a backdrop of disagreement between transferor and transferee, I have to accept that it was ill-advised of the Complainant not to inform her new Employer of the issues she had habitually been having with coming into the workplace by 7.30 in the morning. Instead the complainant continued to ask her long-standing colleagues to continue to clock her in if she was en route and running late. By now the method for clocking in was by a pin and face recognition system.

It does not seem to be denied by the Complainant that in the six-week period analysed by the Respondent that the Complainant was late on up to 50% of the mornings. All these times the Complainant was having her presence being recorded at about 7.30 by one of her colleagues who pinned in the Complainant’s number and then invariably pressed a finger over the camera mechanism so no facial picture comes up.

Two things strike me about this process. Firstly, all parties knew there were CCTV cameras in operation in the hotel and there was one directly over the clocking in machine and this fact did not appear to concern those colleagues and employees who were facilitating the Complainant. Secondly the Complainant herself showed very little concern or regard for the fact that she was involving her colleagues in these acts.

Both the complainant and the Respondent opened up their comprehensive submissions to me. The process by which the Complainant came to be fired included an investigation into her conduct, an investigation report, a disciplinary stage and a disciplinary decision and sanction imposed. There was also a full Appeal process.

The many and varied flaws in the processes undertaken by the Respondent were highlighted to me. This included the fact that the CEO who had initially suspended the Complainant went on to deal with the Disciplinary stage. I noted that the Appeals process was conducted and concluded in such a way to effectively exclude the Complainant from the process.

The Complainant makes the case that the entire process was conducted, orchestrated and designed to remove her from the workplace. She says that within the workplace that she was seen as being a remnant of the days of GK and his ally from inside and the opportunity to terminate her employment was entirely too tempting for the Respondent not to take it. In this regard, the Complainant gave evidence that there her new Employer was dissatisfied that the Complainant was on what was perceived to be a high salary for her standing in the workplace. There was also a resentment towards the fact that she had had a car parking spot in the city centre.

The Respondent however states that the way the Complainant required colleagues and subordinates to indicate her presence in the workplace when she was not present amounted to a deliberate and calculated falsification of company records which amounted to a Gross Misconduct sanctionable by summary dismissal without Notice.

In the course of the hearing before me it became clear that the Respondent wouldn’t or couldn’t verify the Complainant’s contention that the procedures she had adopted for the process of clocking in were long standing procedures and sanctioned by the previous hotel owner GK. It seems the Respondent took the view that this was not likely or possible. They could however not refute the argument presented by her that she was simply continuing what to her was a long standing practise which was eminently foreseeable in a transfer situation.

In my view the Complainant is entitled to the benefit of the doubt in this regard. That is to say as the issue was not investigated by the Respondent so that they must be fixed with an acceptance of the truth of what the Complainant is saying i.e. that she was simply doing what she had heretofore always done.

In the circumstances I accept that the Complainant presented the Respondent with a reasonable explanation which they did not attempt to confirm or validate. It is established that there was no loss to the Respondent as the evidence established that the Complainant, a generally good employee, worked well beyond her contracted hours. The only issue which remains is whether the Complainant should have been dismissed.

The backdrop to this termination of employment included a Transfer of Undertaking where there has to be an expectation that there are inevitable teething problems as parties get used to one another. Past practices and other workplace understandings may not fit in with the ethos of any new employer and a “bedding down” period is to be expected over the initial stages. In those circumstances I am satisfied that the Respondent was entitled to ask that the Complainant’s clocking in system cease and desist but I do not accept that this behaviour, taking all the circumstances into account, was a dismissible offence. The Dismissal of the Complainant herein was ill-judged and unfair. I therefore reject that this is an occasion wherein the words of Mr. Justice Noonan should apply as In the matter of the Governor and the Company of the Bank of Ireland -v- James Reilly wherein he stated:

“The Court cannot substitute its own Judgement on the reasonableness of dismissal for that of the employer; the question is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”

I find that the decision to dismiss was not within that range.

The complainant gave evidence concerning her loss which I accept. The Complainant was out of work for 34 weeks at a rate of €753.00 per week. The complainant secured another job in April 2018 albeit at a lesser salary.

I award the Complainant herein the sum of €28,400.00 compensation under the Unfair Dismissals Act.

The Complainant is entitled to be paid Minimum Notice pursuant to the Acts having commenced work on the 1st of June 2015 and had her employment terminated on the 11th of August 2017. The rate of pay was €753.00 per week.